Grigorii v. Unknown Party et al

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Gordii Grigorii,
Petitioner,
v.
Warden, San Luis Regional Detention
Center, et al.,
Respondents.
No. CV 26-01852 PHX KML (CDB)
REPORT AND
RECOMMENDATION
A 208 048 541
TO THE HONORABLE KRISSA M. LANHAM:
Petitioner, who proceeds pro se, seeks relief pursuant to 28 U.S.C. § 2241.
Petitioner is currently detained at the San Luis Regional Detention Center and he
contends his detention is unlawful and in violation of his right to due process of law.
Respondents have answered the petition and Petitioner has not filed a reply within the
time allowed by the Court. Accordingly, the petition is ready for the Court’s review.
I. Background
Petitioner is a native and citizen of Russia. (ECF No. 1 at 4). Petitioner has been
detained by the Department of Homeland Security since November 23, 2024, when he
entered the United States at the Calexico, California, port of entry during an appointment
scheduled via the CPB One app. (ECF No. 1 at 5, 34). Upon inspection Petitioner was
issued a Notice to Appear, finding him to be subject to removal pursuant to
§ 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”), because he was not
in possession of a visa or other valid entry document and a document of “identity and
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 1 of 16

- 2 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
nationality” such as passport. (ECF No. 1 at 29, 32). Petitioner was ordered to appear in
immigration court on December 11, 2024. (Id.).
It is not clear from the record whether the hearing scheduled for December 11,
2024, occurred, or if it occurred what transpired. However, it appears that at some point
subsequent to his detention Petitioner stated a credible fear of persecution if returned to
Russia and he filed an application for asylum and withholding of removal.
An order of the immigration judge dated July 29, 2025, states:
 This is a summary of the oral decision entered on 07/29/2025. The oral
decision in this case is the official opinion, and the immigration court issued this
summary for the convenience of the parties.
□ Both parties waived the issuance of a formal oral decision in this proceeding.
I. Removability
The immigration court found Respondent □ removable  inadmissible under the
following Section(s) of the Immigration and Nationality Act (INA or Act):
212(a)(07)(A)(i)(I)
***
II. Applications for Relief
Respondent’s application for:
A. Asylum/Withholding/Convention Against Torture
Asylum was □ granted  denied
□ withdrawn with prejudice □ withdrawn without prejudice
Withholding of Removal under INA§ 24l(b)(3) was □granted denied
□ withdrawn with prejudice □ withdrawn without prejudice
Withholding of Removal under the Convention Against Torture was □ granted
 denied
□ withdrawn with prejudice □withdrawn without prejudice
***
IV. Removal
 Respondent was ordered removed to Russia
(ECF No. 1 at 24-26). Petitioner appealed the immigration judge’s decision to the Board
of Immigration Appeals (“BIA”). (ECF No. 1 at 27). The appeal was docketed on
August 28, 2025, and fully briefed as of December 9, 2025. See
https://acis.eoir.justice.gov/en/caseInformation, last visited May 6, 2026.
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 2 of 16

- 3 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II. Claims for Relief
In his § 2241 action, filed March 18, 2026, Petitioner asserts his continued
detention violates his right to Fifth Amendment right to due process. Respondents assert
that because the order of removal is on appeal, and therefore not final, Petitioner’s
detention is mandatory and he is not entitled to a bond hearing or release on any basis,
citing 8 U.S.C. § 1225(b)(2)(A). (ECF No. 9 at 2). Respondents argue “that such
detention is not unconstitutionally indefinite,” and that “the statute and applicable
regulations require Petitioner’s detention without bond through the completion of their
removal proceedings.” (ECF No. 9 at 3). Citing Department of Homeland Security v.
Thuraissigiam, 591 U.S. 103, 139 (2022), Respondents also contend: “Petitioner’s claim
to procedural due process rights must fail because she [sic] is considered legally not to
have entered the United States, even though she [sic] is physically present here.” (ECF
No. 9 at 5).
III. Analysis
The United States Constitution guarantees that the writ of habeas corpus is
“available to every individual detained within the United States.” Hamdi v. Rumsfeld, 542
U.S. 507, 525 (2004). The right to be free from physical restraint is “at the heart of the
liberty” guaranteed by the Due Process Clause of the Fifth Amendment. E.g., Zadvydas v.
Davis, 533 U.S. 678, 690 (2001). Although “detention during deportation proceedings
[is] a constitutionally valid aspect of the deportation process,” such detention must still
comport with the detainee’s right to due process. Demore v. Kim, 538 U.S. 510, 523
(2003). See also Wong Wing v. United States, 163 U.S. 228, 235-37 (1896).The right to
be free from physical restraint is “at the heart of the liberty” guaranteed by the Due
Process Clause of the Fifth Amendment. E.g., Zadvydas, 533 U.S. at 690.
With regard to Respondents’ assertion that the Petitioner has no constitutional
right to due process because he has not “entered” the United States as that term is defined
by federal immigration statutes and decisions interpreting those statutes, in the dissent in
Jennings v. Rodriguez, 583 U.S. 281, 299-308 (2018), Justice Breyer eloquently argued
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 3 of 16

- 4 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the indefensibility of allowing prolonged, unconsidered detention of noncitizens under
the doctrine of what is often referred to as the “entry fiction,” as follows.
It is clear that the Fifth Amendment’s protections extend to “all
persons within the territory of the United States.” ... But the Government
suggests that those protections do not apply to asylum seekers or other
arriving aliens because the law treats arriving aliens as if they had never
entered the United States; hence they are not held within its territory.
This last-mentioned statement is, of course, false. All of these
noncitizens are held within the territory of the United States at an
immigration detention facility. ... At most one might say that they are
“constructively” held outside the United States: the word “constructive”
signaling that we indulge in a “legal fiction,” shutting our eyes to the truth.
But once we admit to uttering a legal fiction, we highlight, we do not
answer, the relevant question: Why should we engage in this legal fiction
here?
The legal answer to this question is clear. We cannot here engage in
this legal fiction. No one can claim, nor since the time of slavery has
anyone to my knowledge successfully claimed, that persons held within the
United States are totally without constitutional protection. Whatever the
fiction, would the Constitution leave the Government free to starve, beat, or
lash those held within our boundaries? If not, then, whatever the fiction,
how can the Constitution authorize the Government to imprison arbitrarily
those who, whatever we might pretend, are in reality right here in the
United States? The answer is that the Constitution does not authorize
arbitrary detention. And the reason that is so is simple: Freedom from
arbitrary detention is as ancient and important a right as any found within
the Constitution’s boundaries. See Zadvydas, supra, at 720-721 []
(Kennedy, J., dissenting) (“inadmissible aliens” who are “stopped at the
border” are “entitled to be free from detention that is arbitrary or
capricious”).
583 U.S. at 331-32 (emphasis in original).
Additionally, on remand from Jennings, the Ninth Circuit Court of Appeals found
that the Supreme Court had chosen “to answer only the question whether the statutory
text itself included a limit on prolonged detention or a requirement of individual bond
hearings.” Rodriguez v. Marin, 909 F.3d 252, 255 (9th Cir. 2018) (emphasis added).1
1 The Rodriguez panel described the Supreme Court’s ruling in Jennings as follows:
In Jennings v. Rodriguez[] 138 S. Ct. 830 [] (2018), the Supreme Court held that
we misapplied the canon of constitutional avoidance to hold that certain
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 4 of 16

- 5 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Citing the United States Supreme Court’s opinion in United States v. Salerno, 481
U.S. 739, 755 (1987), the Ninth Circuit stressed that “[a]rbitrary civil detention is not a
feature of our American government,” and expressed “grave doubts that any statute that
allows for arbitrary prolonged detention without any process is constitutional or that
those who founded our democracy precisely to protect against the government’s arbitrary
deprivation of liberty would have thought so.” Id. at 256 (emphasis added).
The district court’s conclusion in Padilla v. U.S. Immigration and Customs
Enforcement, is persuasive with regard to the applicability of Thuraissigiam in this
context:
The Court stands unconvinced that the Supreme Court’s decision in
Thuraissigiam requires dismissal of Plaintiff’s due process claim. Given the
distinct claims presented in Thuraissigiam, the Court finds the decision’s
narrow holding presents no bar to Plaintiffs’ claim.
In Thuraissigiam, the respondent argued that due process entitled
him to an opportunity to reapply for asylum on account of certain alleged
defects he identified in the process that led to rejection of his asylum
application. [591 U.S. at 138-140]. To understand this claim, the Court first
reviews the factual background and procedural posture of the case. Like
Plaintiffs in the case before this Court, the respondent in Thuraissigiam was
placed into expedited removal proceedings after being detained upon his
entry to the United States where he was found inadmissible. Id. at [114].
Like Plaintiffs here, the respondent applied for asylum. Id. But unlike
Plaintiffs here, the respondent in Thuraissigiam was unable to convince the
immigration officer, a supervising officer, or immigration judge that he
faced a credible fear of persecution if returned to his home country. Id. at
[114]. Having failed to present a bona fide asylum claim, the respondent
was subject to “remov[al] from the United States without further hearing or
immigration detention statutes, namely 8 U.S.C. §§ 1225(b), 1226(a), and
1226(c), implicitly contain a reasonableness determination after which due
process concerns require that persons in prolonged mandatory detention are
entitled to individualized bond hearings and possibly, conditional release.
Although the Court sought and received briefing on the straightforward
constitutional question, i.e. without the implicit requirement of due process for
persons in arbitrary prolonged detention, whether these detention statutes are
constitutional, it declined to reach the constitutional question. The Court instead
chose to answer only the question whether the statutory text itself included a limit
on prolonged detention or a requirement of individual bond hearings.
Rodriguez v. Marin, 909 F.3d 252, 255 (9th Cir. 2018) (emphasis added).
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 5 of 16

- 6 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
review.” 8 U.S.C. § 1225(b)(1)(B)(iii)(I); Thuraissigiam, [591 U.S. at 114].
The respondent then filed a habeas petition through which he sought a writ
of habeas corpus, an injunction, or writ of mandamus directing the
Department of Homeland Security to provide him a “new opportunity to
apply for asylum and other applicable forms of relief.” Thuraissigiam, [591
U.S. at 114–15]. He argued that he had been deprived of a meaningful
opportunity to establish his credible fear claims and that the wrong
standards were applied. Id. But the respondent “made no mention of
release from custody.” Id.
The Supreme Court in Thuraissigiam, rejected respondent’s due
process claim. The Court explained that “aliens who arrive at ports of entry
... are ‘treated’ for due process purposes ‘as if stopped at the border.’” Id. at
[139] (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206,
215 (1953)). And as to any due process rights concerning their efforts to
gain admission, these individuals possess “only those rights regarding
admission that Congress has provided by statute.” Id. at [140]. The Court
based this conclusion on the proposition that “[t]he power to admit or
exclude aliens is a sovereign prerogative” and that “the Constitution gives
the political department of the government plenary authority to decide
which aliens to admit, and a concomitant of that power is the power to set
the procedures to be followed in determining whether an alien should be
admitted.” Id. at [139] (citation and quotation omitted). With these
principles in mind, the Court held that as to his request for admission into
the United States, the respondent had only “a right to a ‘determin[ation]’
whether he had ‘a significant possibility’ of ‘establish[ing] eligibility for
asylum.’” Id. at [140] (quoting 8 U.S.C. §§ 1225(b)(1)(B)(ii), (v)). Having
been “given that right,” the respondent was entitled to no more process in
his efforts to gain admission to the United States. Id.
704 F. Supp. 3d 1163, 1171 (W.D. Wash. 2023) (emphasis added), appeal filed, No. 24-
2801 (9th Cir. May 2, 2024),2 quoted in Doe v. Andrews, No. 25-cv-0333, 2026 WL
797694, at *8 (E.D. Cal. Mar. 23, 2026). In Doe, the court concluded:
… [Respondents] ask the Court to extract from Thuraissigiam a broad rule
that any inadmissible noncitizen possesses only those due process rights
afforded to them by statute, regardless of the nature of their status or the
relief they seek. But such conclusion is untethered to the claim in
Thuraissigiam and the Court’s reasoning. Thuraissigiam’s discussion of
due process is necessarily constrained to challenges to admissibility to the
United States. This was the sole claim presented and [Thuraissigiam]
2 Oral argument in Padilla was heard May 21, 2025, before Judges Berzon, Friedland,
and Mendoza.
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 6 of 16

- 7 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
expressly asked for a chance to reapply for asylum and admission. The
Court then exclusively analyzed whether a noncitizen applicant for
admission has any “rights regarding admission” beyond those set by
Congress. …
2026 WL 797694, at *9 (emphasis added, some internal quotations omitted). See also
Fils-Aime, 808 F. Supp. 3d at 223;3 Gao v. LaRose, 805 F. Supp. 3d 1106, 1110 (S.D.
Cal. 2025);4 Golloo v. Akshar, No. 26-cv-401, 2026 WL 1110266, at *4-6 (N.D.N.Y.
Apr. 24, 2026).
Absent the availability of § 2241 relief, Petitioner and similarly situated
individuals could be indiscriminately detained for an indeterminate, and lengthy, period
of time. This does not conform to the Constitution’s guarantee of due process to
individuals present in the United States of America. A majority of the federal district
3 The complete passage, selectively quoted by the [the government], states that
“an alien in [Thuraissigiam’s] position has only those rights regarding admission
that Congress has provided by statute ... [b]ecause the Due Process Clause
provides nothing more, it does not require review of that determination or how it
was made.” 591 U.S. at 140 [] (emphasis added). Thuraissigiam’s rationale is
based on the executive’s “plenary authority to decide which aliens to admit, and
[the] concomitant ... power to set the procedures to be followed in determining
whether an alien should be admitted.” Id. at 139 [] (internal citations omitted).
The holding circumscribed only due process rights to challenge admission
decisions—in the case of the Thuraissigiam petitioner, denial of his asylum
application—and left open due process challenges to prolonged detention. See
A.L. v. Oddo, 761 F. Supp. 3d 822, 825 (W.D. Pa. 2025) (“Nowhere in
[Thuraissigiam] did the Supreme Court suggest that arriving aliens being held
under § 1225(b) may be held indefinitely and unreasonably with no due process
implications, nor that such aliens have no due process rights whatsoever.”) …
Fils-Aime v. FCI Berlin, Warden, 808 F. Supp. 3d 218, 223 (D.N.H. 2025).
4 Following the Supreme Court’s decision in Thuraissigiam, some district courts
have adopted Respondents’ reasoning to dismiss or deny habeas petitions in the
context of arriving aliens subject to mandatory detention under Section
1225(b)(1). See Petgrave v. Aleman, 529 F. Supp. 3d 665, 669 (S.D. Tex. 2021)
(“As far as Petitioner is concerned, whatever procedure Congress has authorized
is sufficient due process.”); Gonzales Garcia v. Rosen, 513 F. Supp. 3d 329, 336
(W.D.N.Y. 2021) (“Petitioner is on the threshold of initial entry into the United
States and [] he accordingly is not entitled to procedural protections beyond those
provided by statute.”).
Most courts have ruled otherwise. …
Gao v. LaRose, 805 F. Supp. 3d 1106, 1110 (S.D. Cal. 2025).
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 7 of 16

- 8 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
courts that have considered the question have concluded that, at some point, prolonged
detention under § 1225(b), without an individualized bond hearing, becomes
unreasonable and violates the detainee’s right to due process. See, e.g., Rash v. LaRose,
___ F. Supp. 3d ___, No. 26-cv-0008, 2026 WL 249324, at *3 (S.D. Cal. 2026);
Larrazabal-Gonzalez v. Mason, ___ F. Supp. 3d ___, No. 26-cv-00049, 2026 WL
221706, at *5 (S.D.W. Va. 2026) (“The Constitution does not tolerate what would be
plainly unlawful in the criminal context simply because the detention is labeled civil. Nor
does the Constitution withhold its protections when a person is an immigrant.”); Sadeqi v.
LaRose, 809 F. Supp. 3d 1090, 1093 (S.D. Cal. 2025) (“This Court agrees with the
majority position that a petitioner detained under Section 1225(b)(1) may assert a due
process challenge to prolonged mandatory detention without a bond hearing.”); Fils-
Aime, 808 F. Supp. 3d at 224; Rashid v. Trump, 807 F. Supp. 3d 349, 363 (D. Vt. 2025);
Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772 (S.D. Cal. 2020) (“[T]he Court joins the
majority of courts across the country in concluding that an unreasonably prolonged
detention under 8 U.S.C. § 1225(b) without an individualized bond hearing violates due
process.”); Banda v. McAleenan, 385 F. Supp. 3d 1099, 1116-17 (W.D. Wash. 2019)
(“prolonged mandatory detention pending removal proceedings, without a bond hearing,
will—at some point—violate the right to due process.”); Leonteva v. Noem, No. 26-cv-
00043, 2026 WL 711766, at *5 (S.D. Ind. Mar. 13, 2026); Mashchenko v. Rokosky, No.
25-cv-12387, 2026 WL 185204, at *3 (D.N.J. Jan. 25, 2026); Rodriguez Chavez v.
Holman, No. 25-cv-00267, 2026 WL 136902, at *3 (W.D. Pa. Jan. 20, 2026); Maksin v.
Warden, Golden State Annex, No. 25-cv-00955, 2025 WL 2879328, at *3 (E.D. Cal.
Oct. 9, 2025); Abdul-Samed v. Warden of Golden State Annex Det. Facility, No. 25-cv-
00098, 2025 WL 2099343, at *6 (E.D. Cal. July 25, 2025).
Accordingly, it is respectfully recommended that the Court join the federal District
Courts that have concluded prolonged mandatory detention pending the finality of
removal proceedings, without a bond hearing, at some point violates the detainee’s right
to due process of law. See Tavurov v. Noem, ___ F. Supp. 3d ___, 2026 WL 323054,
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 8 of 16

- 9 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
at *4 (W.D. Wash. Feb. 6, 2026); Tenemasa-Lema v. Hyde, 810 F. Supp. 3d 244, 256
n.18 (D. Mass. Nov. 25, 2025); Gao, 805 F. Supp. 3d at 1100; A.L. v. Oddo, 761 F. Supp.
3d 822, 825-26 (W.D. Pa. 2025); Leke v. Hott, 521 F. Supp. 3d 597, 603 n.8 (E.D. Va.
2021);5 Mbalivoto v. Holt, 527 F. Supp. 3d 838, 851 (E.D. Va. 2020) (“[S]ome
constitutionally adequate process must be provided; and the Court concludes, based on
Zadvydas, Demore, and Thuraissigiam, that Petitioner is not foreclosed from the relief he
seeks with respect to his detention either because he is an entering alien, as opposed to an
entered alien, or because there remains a discernable statutory purpose for his
detention.”); Kydyrali, 499 F. Supp. 3d at 772; Abdi v. Duke, 280 F. Supp. 3d 373, 393
(W.D.N.Y. 2017) (“The majority of the courts in this Circuit that have considered the
issue agree, and this Court finds their reasoning ... persuasive. Section 1225(b) does not
permit the indefinite detention of individuals detained under that statute.”); Mashchenko,
2026 WL 185204, at *3; Baishymyrov v. Warden of Golden State Annex Det. Facility,
No. 25-cv-01658, 2026 WL 145644, at *6 (E.D. Cal. Jan. 20, 2026); Sufiiarov v. Warden,
Otay Mesa Det. Ctr., No. 25-cv-03265, 2026 WL 26079, at *3 (S.D. Cal. Jan. 5, 2026)
(“The Court agrees with those courts that have found a noncitizen detained under
5 In support of this conclusion, in Leke at footnote 8 the Eastern District of Virginia cites
the following cases:
See also Kouadio v. Decker, 352 F. Supp. 3d 235, 241 (S.D.N.Y. 2018) (34-
month detention of arriving alien without bond hearing violates due process);
Kydyrali v. Wolf, 499 F. Supp. 3d 768, 772, No. 3:20-cv-539 (S.D. Cal. 2020)
(27-month detention of arriving alien without bond hearing violates due process);
Pierre v. Doll, 350 F. Supp. 3d 327, 332 (M.D. Pa. 2018) (23-month detention of
arriving alien without bond hearing violates due process); Mbalivoto v. Holt,
No.1:20-cv-827 at 5 (Dkt. 22) (E.D. Va. Aug. 11, 2020) (22-month detention of
arriving alien without bond hearing violates due process); Jamal A. v. Whitaker,
358 F. Supp. 3d 853, 859 (D. Minn. 2019) (19-month detention of arriving alien
without bond hearing violates due process); Tuser E. v. Rodriguez, 370 F. Supp.
3d 435, 442–43 (D. N.J. 2019) (same); Djelassi v. ICE Field Office Dir., 434 F.
Supp. 3d 917, 930 (W.D. Wash. 2020) (18-month detention of arriving alien
without bond hearing violates due process); Banda v. McAleenan, 385 F. Supp. 3d
1099, 1177 (W.D. Wash. 2019) (17-month detention of arriving alien without
bond hearing violates due process); Lett v. Decker, 346 F. Supp. 3d 379, 387
(S.D.N.Y. 2018) (10-month detention of arriving alien without bond hearing
violates due process).
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 9 of 16

- 10 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
§ 1225(b) for a prolonged period without an individualized bond hearing may assert a
constitutional right to due process.”); Arechiga v. Archambeault, No. 23-cv-0600, 2023
WL 5207589, at *3 (D. Nev. Aug. 11, 2023); Bermudez Paiz v. Decker, No. 18-cv-4759,
2018 WL 6928794, at *10 (S.D.N.Y. Dec. 27, 2018) (“Most judges who have squarely
faced the question have applied the same logic to § 1225(b), holding that arriving aliens,
like criminal aliens, cannot be detained for an unreasonably prolonged period of time
without a bond hearing.”). Contra Petgrave v. Aleman, 529 F. Supp. 3d 665, 667 (S.D.
Tex. 2021); St. Charles v. Barr, 514 F. Supp. 3d 570, 579 (W.D.N.Y. 2021); Richards v.
Choate, No. 25-cv-031342025 WL 4474703, at *6 (D. Colo. Dec. 5, 2025); Mendoza-
Linares v. Garland, No. 21-cv-1169, 2024 WL 3316306, at *2 (S.D. Cal. June 10, 2024).
The Ninth Circuit Court of Appeals has not provided the lower courts with
guidance regarding the point at which an immigration detainee’s prolonged mandatory
detention under § 1225(b) without a bond hearing becomes unconstitutional. The District
Courts within the Ninth Circuit’s jurisdiction have generally found the test stated in
Banda v. McAleenan, 385 F. Supp. 3d 1099, 1117 (W.D. Wash. 2019) applicable with
regard to those detained pursuant to § 1225(b), see, e.g., Prabhpreet v. Larose, 26-cv-
393, 2026 WL 310192, at *3 (S.D. Cal. Feb. 5, 2026), although some courts have instead
applied the test stated in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), see, e.g.,
Tigranyan v. Warden of Cal. City Det., No. 25-cv-01554, 2026 WL 91765, at *5-7 (E.D.
Cal. Jan. 13, 2026), which has often been applied in situations involving detention under
§ 1226(c). Under either test, Petitioner is entitled to a bond hearing to determine whether
he would be a flight risk or a danger to the community if released from detention.
The Banda court considered the following six factors to determine whether
continued detention under § 1225(b) without a bond hearing violated the detainee’s due
process rights:
(1) the total length of detention to date; (2) the likely duration of future
detention; (3) the conditions of detention; (4) delays in the removal
proceedings caused by the detainee; (5) delays in the removal proceedings
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 10 of 16

- 11 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
caused by the government; and (6) the likelihood that the removal
proceedings will result in a final order of removal.
385 F. Supp. 3d at 1118, citing Jamal A. v. Whitaker, 358 F. Supp. 3d 853, 858–59 (D.
Minn. 2019). See also Sadeqi, 809 F. Supp. 3d at 1094; Kydyrali, 499 F. Supp. 3d at 773-
74; Prabhpreet, 2026 WL 310192, at *2-3; Amado v. United States Dep’t of Just., No.
25-cv-2687, 2025 WL 3079052, at *5 (S.D. Cal. Nov. 4, 2025); Kadir v. LaRose, 25-cv-
1045, 2025 WL 2932654 (S.D. Cal. Oct. 15, 2025).
With regard to the total length of detention to date, Petitioner has now been
detained for seventeen months. Although the length of Petitioner’s detention does not, by
itself, establish prolonged detention in violation of due process, neither does that length
of detention insulate Petitioner’s case from constitutional review. The federal district
courts have ordered a bond hearing where a petitioner was subject to mandatory detention
for a shorter length of time. See, e.g., Lopez v. Garland, 631 F. Supp. 3d 870, 879 (E.D.
Cal. 2022) (“Petitioner has been in immigration detention ... approximately one year.
District court have found shorter lengths of detention ... without a bond hearing to be
unreasonable.”) (collecting cases); Amado, 2025 WL 3079052, at *5 (“Courts have found
detention over seven months without a bond hearing weighs toward a finding that it is
unreasonable.”) (collecting cases); Tonoyan v. Andrews, No. 25-cv-00815, 2025 WL
3013684, at *4 (E.D. Cal. Oct. 28, 2025) (“Petitioner has been detained approximately 11
months. This period ... qualifies as prolonged.”); Gao, 805 F. Supp. 3d at 1112 (“The
Court finds that Petitioner’s detention for over 10 months without a bond hearing, in the
context of the specific circumstances described above, has become unreasonable and
violates due process.”). The Court may reasonably conclude that the first Banda factor
weighs in favor of Petitioner.
The second Banda factor evaluates the potential duration of future detention. It
may take as long as a year for the BIA to reach a decision regarding the IJ’s denial of
asylum. Additionally, should Petitioner exercise his right to appeal any negative decision
by the BIA to the Ninth Circuit Court of Appeals, a decision from the appellate court
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 11 of 16

- 12 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
could take up to two years. See Banda, 385 F. Supp. 3d at 1119 (finding this factor
weighed in the petitioner’s favor where a petitioner who had “only recently” appealed the
IJ’s denial of his case to the BIA faced a process that could “take up to two years or
longer”); Barraza v. ICE Field Off. Dir., No. 23-cv-1271, 2023 WL 9600946, at *6
(W.D. Wash. Dec. 8, 2023), report and recommendation adopted, 2024 WL 518945
(W.D. Wash. Feb. 9, 2024) (citing the Ninth Circuit Court of Appeals website’s timeline
for appeals and noting a petitioner who filed their petition for review in the Ninth Circuit
a few months prior could be facing two years or more of additional time in custody);6
Hong v. Mayorkas, No. 20-cv-1784, 2021 WL 8016749, at *4 (W.D. Wash., June 8,
2021) (finding this factor favored petitioner because they faced “an additional 15 to 38
months” in detention where they were at the “earliest stages” of pursuing a petition for
review before the Ninth Circuit Court of Appeals). Under the government’s theory of
mandatory detention pending finality of an order of removal, and given the current flood
of cases before the BIA and the Ninth Circuit Court of Appeals, Petitioner might
potentially be detained for an additional one or two years pending the final outcome of
his removal proceedings. Therefore, the second Banda factor also weighs in favor of
Petitioner.
The third factor to be considered examines the conditions of detention. “The more
that the conditions under which the noncitizen is being held resemble penal confinement,
the stronger the argument that [the noncitizen] is entitled to a bond hearing.” Barraza,
2023 WL 9600946, at *6 (internal quotations omitted). Petitioner is detained at the San
Luis Regional Detention Center, which houses both immigration detainees and
criminally-sentenced individuals. The conditions under which Petitioner is detained
closely resemble penal confinement. Petitioner is not able to come and go from the
detention center. Visitation is limited and visitors are searched. Inmate mail is screened.
6 At this time the Ninth Circuit advises that a civil appeal can take six to twelve months
from the date the notice of appeal is docketed to being set for oral argument, with another three
months to a year before a decision is issued, or four months from the time an appeal is briefed
until a decision is made if oral argument is not ordered. See
https://www.ca9.uscourts.gov/general/faq, last visited April 27, 2026.
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 12 of 16

- 13 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The detention center determines when Petitioner is able to exercise, what he may eat, and
what belongings he may possess. The Court may reasonably conclude that the third
Banda factor weighs in favor of Petitioner.
The fourth and fifth Banda factors examine the delays in the removal proceedings
caused by the detainee and delays in the removal proceedings caused by the government.
There is no evidence that Petitioner has engaged in any delay of his proceedings other
than by appealing the IJ’s denial of asylum and withholding of relief from removal to the
BIA, which he has a right to do. There is no indication that the government has caused
any delay in Petitioner’s proceedings. Accordingly, these two factors are neutral.
The sixth prong of the Banda test considers the likelihood that Petitioner’s
removal proceedings will result in a final order of removal. In considering the “likelihood
that the removal proceedings will result in a final order of removal,” the court considers
“whether the noncitizen has asserted any defenses to removal.” Banda, 385 F. Supp. at
1120 (citations omitted). Where the petitioner has asserted a good faith challenge to
removal, “the categorical nature of the detention will become increasingly unreasonable.”
Id. (internal quotations omitted), cited in Kadir, 2025 WL 2932654, at *5. Petitioner
appears to have asserted a good faith challenge to removal and therefore this factor
weighs in favor of Petitioner.
Notably, one of the Matthews factors is consideration of “the Government’s
interest, including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement,” i.e., a bond hearing, “would entail.” 424
U.S. at 335. The government’s interest in Petitioner’s detention is to ensure that
Petitioner appears for all of his immigration proceedings, i.e., that he is not a flight risk,
and that he is not a danger to the community. Petitioner has not committed any crime,
faces no charges, and did not attempt to avoid inspection when he appeared at a port of
entry, indicating respect for the laws of the United States. Petitioner appeared for
inspection with the hope of admission and the express acquiescence of the government
via the CBP process. Petitioner has a sponsor (an Orthodox priest) in the United States
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 13 of 16

- 14 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(ECF No. 1 at 37), who will ensure that he does not become an economic burden on the
state.
Having determined that a bond hearing is required, the question of who bears the
burden of proof at a bond hearing in the context of § 1225(b) detention should be
answered. This is not a question clearly resolved by the federal courts at this time. The
Supreme Court has stressed that “due process is flexible” and “calls for such procedural
protections as the particular situation demands.” Jennings, 583 U.S. at 314, 138.
Some district courts within the Ninth Circuit have concluded that at bond hearings
involving those detained for a prolonged period of time pursuant to § 1225(b), without an
individualized finding of whether they should be released on bond pending the finality of
their removal proceedings, the government bears the burden of establishing the detainee
should not be released on bond because they are a flight risk and/or a danger to the
community. See Gao, 805 F. Supp. 3d at 1112; Chenghong Xie v. Larose, No. 3:26-cv-
01116, 2026 WL 836351, at *2 (S.D. Cal. Mar. 26, 2026); Sadeqi, 809 F. Supp. 3d at X;
Kadir, 2025 WL 2932654, at *6; Idiev v. Warden of the Golden State Annex Det. Facility,
No. 25-cv-01030, 2025 WL 3089349, at *6 (E.D. Cal. Nov. 5, 2025) (ordering bond
hearing where “the government must justify Petitioner’s continued confinement under
§ 1225(b) by clear and convincing evidence that Petitioner is a flight risk or a danger to
the community”). The Court could, therefore, join these courts and apply the “general
principles of procedural due process,” i.e., place the burden of establishing the elements
warranting detention on the government rather than requiring Petitioner to prove those
elements in the negative. See Fils-Aime, 808 F. Supp. 3d at 224; Sandesh v. LaRose, No.
26-cv-0846, 2026 WL 622690, at *5 (S.D. Cal. Mar. 5, 2026), citing, e.g., Banda, 385 F.
Supp. 3d at 1120; Belqasim v. Bostock, No. 25-cv-01282, 2025 WL 3466971, at *10
(W.D. Wash. Oct. 28, 2025), report and recommendation adopted, 2025 WL 3170929
(Nov. 13, 2025). See also Rodriguez Diaz v. Garland, 53 F.4th 1189, 1202 n.4 (9th Cir.
2022) (Wardlaw, J., dissenting, discussing the equities of placing the burden on the
government in the context of detention under § 1226); Gao, 805 F. Supp. 3d at 1112; A.E.
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 14 of 16

- 15 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v. Andrews, No. 25-cv-00107, 2025 WL 1424382, at *5 (E.D. Cal. May 16, 2025)
(recommending that “Respondent be ordered to provide Petitioner with a bond hearing
before an immigration judge at which Respondent must justify Petitioner’s continued
detention by clear and convincing evidence” in the context of detention pursuant to
§ 1225(b) that the court found had become unreasonably prolonged). The Court could
also order that in the event Petitioner is determined to not be a danger to the community
and to not be a flight risk, the IJ must consider Petitioner’s financial circumstances or
alternative conditions of release when determining any bond. See Hernandez v. Sessions,
872 F.3d 976, 1000 (9th Cir. 2017) (“Plaintiffs are likely to succeed on their challenge
under the Due Process Clause to the government's policy of allowing ICE and IJs to set
immigration bond amounts without considering the detainees’ financial circumstances or
alternative conditions of release.”); Black v. Decker, 103 F.4th 133, 138 (2d Cir. 2024)
(The district court “correctly directed the immigration judge (“IJ”), in setting his bond
and establishing appropriate terms for his potential release, to consider his ability to pay
and alternative means of assuring appearance.”).
IV. Conclusion
Petitioner’s detention for seventeen months without a bond hearing, under the
circumstances and equities of this case, has become unreasonable and violates
Petitioner’s Fifth Amendment right to due process of law. Petitioner is entitled to a
prompt and individualized bond hearing, at which Respondents must justify his continued
detention by a showing of clear and convincing evidence that Petitioner would likely flee
or pose a danger to the community if released.
Accordingly,
IT IS RECOMMENDED that the petition for habeas relief pursuant to § 2241
(ECF No. 1) be granted, and the Court order Petitioner be released or that within seven
(7) days of the date the petition is granted Petitioner be given a bond hearing before a
neutral adjudicator at which hearing the government must bear the burden of showing
that Petitioner should not be released on bond because he is a flight risk and a danger to
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 15 of 16

- 16 -
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the community. If the Court orders a bond hearing it should further order that the
adjudicator prepare a written, explained decision, rather than checking boxes on a form,
describing the clear and convincing evidence proffered by the government that the
immigration court considered when reaching the decision.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of
Appellate Procedure, should not be filed until entry of the District Court’s judgment.
Rule 72(b), Federal Rules of Civil Procedure, provides that the parties shall have fourteen
(14) days from the date of service of a copy of this recommendation within which to file
specific written objections with the Court. Pursuant to Rule 7.2(e)(3) of the Local Rules
of Civil Procedure for the United States District Court for the District of Arizona,
objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate
Judge will be considered a waiver of a party’s right to de novo appellate consideration of
the issues. See United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc).
Dated this 7th day of May, 2026.
Case 2:26-cv-01852-KML Document 13 Filed 05/08/26 Page 16 of 16